Opinion
22-1360
05-20-2024
XIAODONG LIU, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted May 16, 2024 [**] San Francisco, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A215-835-730
Before: S.R. THOMAS, CALLAHAN, and SANCHEZ, Circuit Judges.
MEMORANDUM [*]
Xiaodong Liu, a native and citizen of China, petitions for review of an order by the Board of Immigration Appeals ("BIA") dismissing his appeal of an order by an Immigration Judge ("IJ") (collectively, "the agency") denying him asylum, withholding of removal, and protection under the Convention Against Torture ("CAT") based on an adverse credibility determination.[ Because the parties are familiar with the facts, we do not recount them here. We have jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition.[
Liu did not challenge the IJ's denial of CAT protection in his brief to the BIA, nor does he challenge in this petition the BIA's finding of waiver. Thus, he has both forfeited and failed to exhaust any CAT-related objections. See Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023) (exhaustion); Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (forfeiture).
The temporary stay of removal shall remain in effect until issuance of the mandate. The motion for stay of removal (Dkt. No. 4) is otherwise denied.
We review credibility determinations for substantial evidence, based on "the totality of the circumstances." Alam v. Garland, 11 F.4th 1133, 1137 (9th Cir. 2021) (en banc); see also Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). We conclude that misrepresentations in Liu's visa and asylum applications, combined with his voluntary returns to China after the claimed persecution began, provide substantial evidence to support the agency's determination that Liu was not credible.
Because these grounds, alone, provide substantial evidence, we need not address Liu's arguments challenging the agency's additional reliance on two purported inconsistencies or omissions.
1. In the agency proceedings, Liu admitted that his August 2017 application for a tourist visa falsely stated that (1) he did not have relatives in the United States, when in fact his mother was already living here, and (2) his salary was higher than what he actually earned; and that he made these misrepresentations to improve his chances of visa approval. Liu argues that these false entries should not undermine his credibility because they were made as part of his attempt to escape persecution, citing Singh v. Holder, 638 F.3d 1264, 1271 (9th Cir. 2011).
However, because Liu did not challenge the IJ's reliance on these false visa entries in his brief to the BIA, his argument is unexhausted. See Umana-Escobar, 69 F.4th at 550. Even if the issue were exhausted, Liu's argument fails because there was no apparent urgency to his situation. When he applied for his visa in 2017, it had been about seven years of police periodically visiting him in China with no further allegations of abuse, and in the interim he had twice left China for vacations and voluntarily returned. Therefore, he did not "need[] to lie [his] way out of a persecuting country" for "immediate escape from persecution." Singh, 638 F.3d at 1272.
2. Next, as the agency found, Liu's credibility was also undermined by evidence that he returned to China after his November 2016 vacation to the United States. See Loho v. Mukasey, 531 F.3d 1016, 1017-18 (9th Cir. 2008). As in Loho, Liu was "on notice of the possibility of staying in the United States" because his Chinese-native mother had successfully obtained asylum in 2014, but he took no steps to determine how he could potentially avoid returning to China during his two-week trip. See id. at 1018 (upholding adverse credibility determination based on applicant "fail[ing] to take any additional steps to avoid returning" to country of persecution, despite being on notice of possibility of staying in U.S.). Liu offers no means of distinguishing Loho, which squarely supports the agency's adverse credibility finding.
3. In addition, the agency relied on the fact that Liu falsely stated on his asylum application that he had not returned to China after being persecuted there. Liu did not challenge the IJ's reliance on this misrepresentation in his brief to the BIA, nor does he challenge it in this petition. Thus, he has both forfeited and failed to exhaust any objection to the agency's reliance on this ground-which, in any event, also supports the adverse credibility determination.
4. The affirmative false statements Liu made on two official applications "weigh particularly heavily in the adverse credibility inquiry" against remand. Kumar v. Garland, 18 F.4th 1148, 1155; see Li v. Garland, 13 F.4th 954, 960-61 (9th Cir. 2021) (finding submission of false information in asylum and visa applications sufficient, post-Alam, to support adverse credibility determination without remand). The fact that Liu voluntarily returned to China post-persecution lends further support for the adverse credibility determination under Loho, 531 F.3d at 1017-18. Therefore, under the totality of the circumstances, the record does not compel the conclusion that the agency's adverse credibility determination was erroneous. See Li, 13 F.4th at 961.
Liu does not argue that he presented sufficient documentary evidence to independently establish his eligibility for asylum or withholding of removal in the absence of credible testimony. Thus, that argument is forfeited. See Lopez-Vasquez, 706 F.3d at 1079-80.
PETITION DENIED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).